UDCMO – questions, concerns, complaints
The Uniform Differentiated Case Management Order, following the S.C. Supreme Court’s landmark decision in Langford, leaves a lot of questions to be answered. I think that this could and should be a huge leap forward for the State of South Carolina, and it was a long time coming. I also think that it can and will work if everyone is on board, particularly our circuit court judges. But, there are many questions to be answered and there will be a good deal of confusion going forward.
I don’t know, but it appears that neither the criminal defense bar, public defender association, nor the solicitors were consulted before the Order was drafted and signed. What follows are some questions, concerns, and complaints, compiled from the criminal defense bar and from my own reading of the Order, that will need to be addressed:
1. Initial Appearances and conflicts. Under the current system in most circuits, Initial Appearances can be waived – because the primary concern is whether the defendant has representation and who the attorney is, we send a letter of representation along with a request to excuse the defendant from that particular appearance which is uniformly granted.
The Order says that there will be no continuances of the Initial Appearance. Will it be possible to waive Initial Appearances, and how will the courts deal with this pronouncement? Attorneys in private practice will often have conflicts that have to be resolved, where they have to be in federal court, or family court, or in court in another county, at the same time that a client’s Initial Appearance is scheduled. Many attorneys, myself included, have cases in multiple counties across the state – will Initial Appearances in each county be scheduled on the same days, as currently they are mostly all held on Fridays?
A solemn pronouncement that “there will be no continuances” is not practical or possible – attorneys cannot be in two places at once. There will have to be provision made for waivers of Initial Appearances or continuances when necessary.
2. The Order states that the Solicitor will provide discovery to the defendant before the Initial Appearance – what is meant by discovery? Solicitor’s offices statewide routinely provide only the most basic discovery in response to defense discovery requests – often nothing more than an incident report and NCIC on the defendant. Sometimes there are investigative reports and witness statements, sometimes there is not. In many counties, the discovery that is received is redacted, with the names and contact information for all witnesses including alleged victims blacked-out or otherwise removed.
In many cases, a decision cannot be made as to plea or trial and competent advice cannot be given until supplemental discovery requests are sent and sometimes a motion to compel has been heard. It may be malpractice to plead a distribution case without first seeing the video or hearing the audio of the transactions the charge is based on. The S.C. and U.S. Supreme Courts have held that it is ineffective assistance of counsel where defense counsel does not conduct an independent investigation of the facts – which is impossible to do when the prosecution has redacted all information about the potential witnesses in a case. Dashcam videos must be obtained in traffic stops, but are rarely provided in initial discovery. Discovery often references audio or videotaped interviews that are not provided along with the initial discovery.
Does “discovery” mean complete discovery, or does it mean a minimum such as an incident report and nothing else? If an incident report is provided, but audio and videotaped evidence, unredacted witness statements, or dashcam videos are not, is the case to be administratively dismissed?
3. When discovery is not provided before the Initial Appearance, the case is to be dismissed without prejudice by the judge, application must be made to the chief administrative judge, and “good cause” for the discovery violation must be shown before a new warrant can be issued. Who is to monitor this process? What is the remedy when a new warrant appears that is signed by someone other than the chief administrative judge? Is the defense not permitted to know what was said in that presumably ex parte proceeding? What is “good cause?”
4. The Order says that at the Second Appearance a plea date or a trial date will be set – this conflicts with the remainder of the Order which states that no trial date will be set until the Solicitor files a Notice of Court Docketing, after which the case is put on the trial roster by the Clerk of Court.
5. Administrative dismissals, dismissals for discovery violations, and dismissals at preliminary hearings – there needs to be a standard procedure in place for bond issues when a case is dismissed without prejudice. If the Order is followed, there will be, at least in the beginning, a large number of dismissals. At preliminary hearings alone, officers often do not show up and do not have an excuse for not showing up, and these cases will be dismissed. Once the case is dismissed, the solicitor’s office sends the case for indictment by the grand jury.
In most cases where this has happened in the past, we have been able to coordinate with the solicitor a court appearance where the indictment is served on the defendant and a consent bond order is signed, continuing the prior bond conditions. Last year we had one case where the assistant solicitor ignored our communications about this and instead had the Horry County Police Department serve the indictment on the defendant, arresting him and putting him in jail until I was able to get into court and straighten it out. This is a “loophole” where assistant solicitors, through negligence, incompetence, or maliciousness, can and do cause defendants to be re-arrested and incarcerated without any good cause.
6. Preliminary hearings will be held at the Court which issued the charge – many counties have centralized preliminary hearing courts, where prelims from the various magistrate courts and the municipal courts are all heard at the same place and the same time. Is it the intent of the Order to stop the use of central preliminary hearing courts like the one in Horry County, and require each court to hold their own preliminary hearings?
7. What is the 180-day track? Why call it a “180-day track” if there is nothing special about this time period or nothing that is to occur during the time period? It is referenced throughout the Order but never defined.
8. There may be conflicts between any any requirement for issues to be resolved at Initial Appearance or Second Appearance and an attorney’s constitutional and ethical duties – mental health issues, discovery issues, prosecutors withholding discovery at the time they are making plea offers at Second Appearances. I think that these will be worked out in litigation, and the defense attorney needs to make a record at each appearance in court and through written motions when these issues arise.
9. Members of the private criminal defense bar who accept representation on payment plans are concerned that they will not get paid by the time a case is resolved – personally I don’t think this should be a concern of the court, but I do acknowledge that these attorneys provide a valuable service for those clients who cannot afford to pay an attorney up front. My advice to private criminal defense attorneys is to get paid up front or negotiate shorter payment plans; regardless, these defendants may swell the ranks of public defender clients.
10. Concerns have been expressed that this is a “one size fits all” solution, without regard to the very real differences between the different circuits – some circuits have a huge number of warrants daily, whereas others have much lower numbers of cases. Some circuits have court every week or every other week, where others like Marion County have one term every 3 months. My opinion is that the system laid out in the Order should work in every circuit, although there will be differences in the case loads, and the day to day operations. The larger counties will need to implement different procedures to carry out the Order than the smaller counties. The problems in Marion County, where it is the norm for a case to sit for 3-4 years without being called for trial, will only be solved by more court time – and in my opinion can only be improved by following the requirements in the Order.
11. Concern has been expressed that there is no mention of juvenile cases in the order – juvenile cases are handled in the Family Court. I don’t handle many juvenile cases, so I have no idea if the Family Court juvenile docket has the same problems. I am concerned that juveniles are not afforded the same protections that adult defendants are, but this is nothing new in a system where juveniles are not even given the right to a jury trial. The juvenile system needs reform, but clearly this Order was not intended to address the problems in the juvenile system.
12. Court rules will need to be changed to incorporate this order, as many of the provisions are in conflict. Legislation should be drafted that tracks the language of the order and addresses the gaps in the order.
If anyone has additional concerns or questions, feel free to leave them in the comment section.