How Do Indictments Work in South Carolina?

Indictments are a “charging document,” and they are required in every General Sessions criminal case in South Carolina – if a case has not been indicted, the prosecutor cannot call the case for trial.

The right to indictment by a grand jury is a constitutional right – in the SC and the federal constitutions.

Indictments in South Carolina are issued by the grand jury – South Carolina’s grand jury process has justifiably come under fire recently, with national news coverage of our “rigged” system…

How do indictments work in South Carolina, and what’s the controversy with South Carolina’s grand jury process about?

When is an Indictment Issued in a Criminal Case in SC?

Every criminal case in SC begins with a charging document that is generated by law enforcement and that puts an accused person on notice of the charges against them. How that works depends on which court you are charged in…

Indictments in General Sessions Court

The original charging document for most criminal cases in General Sessions Court is an arrest warrant, although some cases begin with indictment by a grand jury.

The arrest warrant authorizes law enforcement to apprehend the suspect and take them to jail, after which a magistrate or municipal judge will determine whether they can be released on bond and what the conditions should be.

It contains information on who the person is, what offenses they are charged with, and who the arresting officer is. It must include an affidavit completed by the arresting officer or their supervisor that details the probable cause for the charges.

Even though a warrant has been issued and a person’s case is now in the court system, their case cannot be called for trial until a grand jury reviews the evidence supporting probable cause and issues an indictment, or unless the defendant waives their right to indictment by the grand jury.

Are There Indictments in the Summary Courts?

If you are charged in the summary courts (magistrate court or municipal court), there is no requirement for the state to indict the case.

Some cases in the summary court begin with a blue ticket, while others begin with an arrest warrant.

What is the Grand Jury in SC?

The grand jury is composed of 18 people who meet once each month. Their job is to consider the evidence presented by the state and determine whether it rises to the level of “probable cause.”

If the grand jury decides that there is probable cause, they will “true bill” the indictment and send it back to the court for trial. If there is no probable cause, they “no bill” the indictment and the case is dismissed.

The Grand Jury Would Indict a Ham Sandwich…

I’ve heard many attorneys and even judges say to defendants that “the grand jury would indict a ham sandwich.” What do they mean by that?

They mean that grand juries in SC “true bill” indictments in 99.99 percent of cases. For example, in:

  • Greenville County, between 2011 and August 2015, 18,700 indictments were returned at a true bill rate of 99.99%;
  • Charleston County, in 2014, 6,366 indictments were returned with only seven no bills;
  • Florence County, in 2014 and 2015, 2,384 indictments were returned with one no bill.
  • Sumter County, from 2014 to 2016, 2,936 indictments presented with six no-bills.

Are South Carolina state prosecutors and police so good that, after carefully reviewing the evidence, grand jurors find probable cause in 99.99 percent of the cases?

Why Are Grand Juries True Billing Every Case?

It’s simple. It’s because they are not reviewing the evidence in cases. They’re not reviewing the evidence because prosecutors are not allowing them to – the defendant is not allowed to appear, testify, or even know that the grand jury is considering their case. In most cases, no witnesses with actual knowledge are called to testify to the grand jury.

So, what is happening? An officer or investigator from the solicitor’s office will read a short, prepared statement to the jurors that informs them that the defendant is guilty and why. The actual officer does not appear to tell the jurors what happened – an officer or investigator who doesn’t know anything about the case will read the prepared statement.

Do the jurors have questions? Reportedly, they never ask questions. Maybe that’s because there is no one there who could answer them…

York County Defense Attorneys Take the Spotlight

Last week, a hearing was held to decide a motion filed by 27 attorneys who are asking the court to dismiss their client’s indictments in York County, SC.

Why?

Because 904 charges were indicted in a single day. 904 (not a typo). On that particular day, the grand jury spent an average of 39 seconds deciding whether there was probable cause for each indictment

Why do we still have a grand jury, if it is meaningless?

Because it is required by the state and federal constitutions. SC prosecutors have made the process meaningless – continuing to convene grand juries because they must while ensuring that no grand jury will dismiss a case unless the prosecution wants them to…

What Does the York County Solicitor Say About It?

“They give them summary of the facts, and as soon as the grand jury hears enough information to believe that this is evidence to support the charges, they can stop them.”

So, if 39 seconds of reading a pre-prepared statement is too much information, jurors can cut the officer off and move on to the next one…

“The facts can easily be detailed in a minute or less.”

Yes. An officer or investigator can make a statement that x,y,z happened and they can do it in a minute or less.

“The lawyers who filed the motion had “no real understanding of how the grand jury works,” and called the motion a “non-issue.”

This, even though many of the defense attorneys who filed the motion are former prosecutors who know exactly how the rigged system works…

“It’s not 904 cases, or people, but 904 individual charges.”

904 individual charges, each of which must have probable cause to go forward to trial.

Could it be that the problem here is the prosecutors are not concerned about due process? We should just assume that they get it right 100% of the time, and no case should be dismissed once a police officer decides to charge someone?

Consider this final statement from the York County solicitor: “(Defense lawyers) take that faulty assumption and generate this 39 seconds statistical conclusion that they then use like a drunk uses a lamppost, for support rather than illumination.”

Because calling defense attorneys a bunch of drunks is an effective argument, right? When you don’t have an argument, you just attack the other side? I think that illumination is exactly what the defense is looking for – why wouldn’t the prosecutor also want illumination?

We know that many cases are filed without probable cause – these cases are dismissed at preliminary hearings, and many of them are dismissed by the prosecution once they figure out. Prosecutors want to be the only ones to make that determination, and that is just not how a fair and just system works.

Why did the York County solicitor send so many cases to the grand jury all on one day? Reportedly, it was to prevent many of them from being decided by a magistrate at the defendants’ preliminary hearings.

Every defendant charged with a crime in General Sessions court in SC has a right to a preliminary hearing – where a judge hears real evidence from a real witness who has first-hand knowledge of the events in the case and decides whether there is probable cause.

Under SC law, however, when a case is indicted by the meaningless grand jury, the defendant loses their right to have a judge decide whether there is probable cause based on actual evidence.

How Do We Fix South Carolina’s Broken Grand Jury System?

It would help if prosecutors stopped trying to control the system and acted like they are about due process, justice, and the integrity of our criminal justice system.

It would help if the courts get involved and dismiss indictments because the grand jury system does not comply with the constitutional mandate.

Most importantly, the legislature can fix it – by making the grand jury process meaningful – if we had an effective system for grand jury determinations of probable cause, we would not need preliminary hearings. Give us a grand jury where the defense has notice and the opportunity to appear and where jurors hear actual evidence from which they can decide whether a case should go forward…

Who Cares?

I think that the truth is: no one cares about the grand jury system but defense attorneys and defendants.

Prosecutors: Does the York County solicitor speak for all or most of our state’s prosecutors? Defense attorneys are drunks looking for a lamppost to support them? The grand jury system is great as it is because it allows prosecutors to get around the preliminary hearing requirement? 39 seconds is more than enough time to determine whether there is probable cause with a witness who has no personal knowledge of the case?

Judges: Defendants have a right to challenge the grand jury system. But no right to transcripts or other records to show what happens during grand jury “deliberations.” No judge in SC to date has ruled that the grand jury process violates due process.

Legislators: I don’t believe that our legislature is motivated to fix the problem, either. “Coddling criminals” is never good for politics, and “tough on crime” is still the ticket to re-election. The voting public could care less about preserving the values and constitutional protections that we say make America great.

I care.

I care that some people are being dragged through an unfair criminal justice system when they should never have been arrested in the first place.

I am embarrassed that “kangaroo court” is an accurate description of South Carolina justice, and that national media is reporting on how prosecutors control our criminal courts without regard to due process and without any meaningful oversight.

Wait, How Did the Court Rule at Last Week’s Hearing?

As I write this article, I’ve learned that the Court ruled in the defendant’s favor, and quashed all 904 indictments:

The State’s presentment of 904 indictments to a grand jury during a ten-hour period on June 14, 2018 is an unnecessary and unreasonable burden on the grand jury. Public confidence in our system of justice is eroded by the grand jury being asked to act on 904 indictments in a ten-hour period.

Presenting 904 indictments to the grand jury places an unnecessary and unreasonable burden and expectation on law enforcement and witnesses to be adequately prepared. It also places an unreasonable and unnecessary burden on court personnel to process the paperwork necessary to administer the flow of paperwork for 904 indictments.

The Solicitor’s action in sending 904 indictments to the June 2018 Grand Jury included indictments of a number of Defendants who had timely requested preliminary hearings for their pending warrants…Some of these Defendants were in jail, unable to meet bond or denied bond by their warrants. The actions of the Solicitor denied these Defendants their statutory right to a meaningful preliminary hearing and their right to be released from detention had no probable cause been found at the preliminary hearing.

THEREFORE, the Court GRANTS the Defendant’s Motion to Quash the 904 indictments true billed by the York County Grand Jury on June 10, 2018.

Now we wait to see what our state Supreme Court says about it…

Criminal Defense Lawyer in Columbia, Lexington, and Myrtle Beach SC

Lacey Thompson is a criminal defense lawyer with offices in Myrtle Beach and Columbia, SC.

If you’ve been charged with a crime in SC, call now at 843-444-6122 or send an email online to talk with a defense attorney today.

 

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