State court ruling strips solicitor of power to decide court dates 

The Prosecution Rests

Former prosecutor Andy Savage was not surprised by the court's ruling.

Jonathan Boncek

Former prosecutor Andy Savage was not surprised by the court's ruling.

Because of a recent state Supreme Court opinion, South Carolina will no longer be the only state in the nation where prosecutors control when a case goes to trial. It's a decision those in the legal community say will have a major impact on the Palmetto State court system, and members of the bar are still figuring out what it will mean for the criminal courts. And it's a decision Chief Justice Jean Toal indicated is controversial and still somewhat in flux.

In civil court, a judge maintains trial schedules, but in criminal court, an institutional bias toward the solicitor was built-in allowing prosecutors to control the docket — that is, until Nov. 21 when the state Supreme Court ruled that the system is unconstitutional and must change because it violates a separation of powers. (In South Carolina, a solicitor is a regional elected official similar to a district attorney who decides which cases go to trial. They serve four-year terms.)

In a 2005 American Journal of Criminal Law article titled "When Prosecutors Control Criminal Court Dockets: Dispatches on History and Policy from a Land Time Forgot," former University of South Carolina law professor Andrew Seigel laid out the problems with the Palmetto State's unique system. He wrote that lawyers and witnesses often had "little real notice as to when and whether cases will be called for trial," and incarcerated defendants who might otherwise exercise their right to a jury trial "routinely plead guilty instead of waiting in jail until the solicitor designs to bring their cases to a court's attention."

The state Supreme Court's ruling stems from the case of a man currently serving a 20-year sentence for the armed robbery and kidnapping of a Chinese restaurant owner in Johnson, S.C. The man, K.C. Langford III, sat in jail for more than a year before a prosecutor called his case for trial. The high court said he wasn't harmed by the timing of his case, however, and ultimately upheld his convictions. But the Public Defender Association had filed an amicus brief in the case that challenged the constitutionality of the state statue giving prosecutors control of the criminal docket, and the court agreed.

Andy Savage, a high-profile Charleston defense attorney who decades ago was a prosecutor in the state's Fifth Circuit, was present for oral arguments in the case. He says he's not surprised by the high court's ruling, but thinks the underlying concerns could have been dealt with more easily. For instance, he says, civil courts in South Carolina have substantial rules concerning procedure, while criminal courts don't, something that's always been a problem.

"I'm not sure the solicitors are going to be real happy with it," Savage says of the court's opinion.

Ninth Circuit Solicitor Scarlett Wilson, who oversees Charleston and Berkeley counties, says that she and other solicitors "are looking into the propriety of filing a reconsideration motion." Wilson declined to go into detail about her feelings on the ruling, but said she was concerned with its application.

One segment of the legal community that's supportive of the new change is public defenders. Under the prior law, solicitors had control over calling cases, which meant they could call a case when they wanted and in front of whichever judge they selected as long as they gave minimal notice to the defense attorney, says Fielding Pringle, chief public defender for Richland County. She adds that for a public defense attorney with a caseload of 300-plus cases, such a system created a serious disadvantage to public defenders and a clear advantage to the solicitor.

"It's a tremendous change in the law," Pringle says of the court's opinion. "It's a long time coming and it's the right change."

Pringle points out that solicitors didn't always exploit the inequities embedded in the old law. "The problem is that the power to exploit and to place a defendant at a disadvantage was there, and in the wrong hands that is a dangerous thing — and an inequitable system, and that has now been rectified," she says.

Orangeburg Solicitor David Pascoe, who is president of the state Solicitors Association, says he's not shocked by the ruling. However, he also calls it a myth that prosecutors get to exclusively decide when a case goes to trial, saying that it's ultimately up to a trial judge in the end.

Savage says one reason it might take a solicitor a long time to call a case to trial is because prosecutors often have to rely on investigators from local law enforcement agencies, and different jurisdictions have varying resources. He says the forensic backlog at the State Law Enforcement Division, for instance, is a real problem.

According to Dick Harpootlian, a Columbia attorney who served for 12 years as a solicitor in Richland County, clients of private-practice defense attorneys could benefit from the high court limiting solicitor control of the docket. Under the old system, a prosecutor could approach a defense attorney and give them the option of trying their case in front of a lenient judge in exchange for a guilty plea — or have it tried in front of a stricter judge, where if a client is found guilty he or she would likely receive a harsher sentence.

"The routine was, 'I've got Judge A coming, if you want to plead guilty, who's known for their more-or-less leniency' ... or 'I'm going to try it in front of Judge B, who if you get convicted is going to throw the book at you,'" Harpootlian says of his solicitor days.

Pascoe of the Solicitors Association says he doesn't think any prosecutor would do that, and that it's often a defense attorney who will try to suggest a particular judge to a prosecutor in order to make a deal.

Savage, the Charleston defense attorney, says such reasons are likely why the justices ruled the way they did. "When the solicitor runs the docket, there's always that fear of danger that it can be abused, but there's always been a remedy," he says. "The truth is ... if I want to remedy that, then I have a way to do that and it's on my back. It's to file a speedy trial motion. My remedy is to dismiss the arrest warrant. But that's a choice I have to make."

That also jibes with the opinion of the high court's only dissenter in the ruling, Justice Costa Pleicones, a legendary former public defender. The prior discretion afforded to solicitors "does not mean that the solicitor's authority is unrestrained by judicial oversight," Pleicones wrote in his dissent. "The trial judge has the ultimate authority to determine whether a case called by the solicitor will be tried at a particular juncture."

The new system won't take effect until Feb. 4 and puts judges in control of setting the court dockets.

According to Mt. Pleasant attorney William Hamilton, the high court released new rules in an attempt to make the legal system work faster, but he says it's already working pretty quickly.

"We just need more judges, clerks, prosecutors, and public defenders," Hamilton says. "South Carolina refuses to understand that having a complex, modern society requires levels of investment in court systems, education, and communication, which have to be more expensive. You can't expect the courts to manage with the same resources they had 20 years ago when the number of cases has grown."

Speaking at a Dec. 12 seminar in Columbia hosted by the S.C. Bar, Supreme Court Chief Justice Jean Toal said she didn't think either side was satisfied with her court's opinion. Solicitors in the state might have negative feelings about the opinion, she indicated, and "public defenders may have some feelings of victory." She said both sides have filed petitions for a re-hearing.

After the re-hearing process is over, Toal said she would be more free to speak about what steps the court system will take to drain the swamp of backlogged cases and ensure that new ones move forward in a standardized, organized way.

"It's a decision," Toal said of the Nov. 21 opinion, "but it's not really final."


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