How Do We Address Prosecutorial Misconduct in South Carolina?

There is no remedy for prosecutorial misconduct in South Carolina.

Although many of the prosecutors that I have met and work with on cases in our state are conscientious, hard-working attorneys who I believe strive hard to comply with the ethics rules that govern lawyers, many are not.

When trial courts, appellate courts, and disciplinary counsel regularly look the other way and give a pass to prosecutors for ethical violations, some of our state’s prosecutors see it as encouragement and a license to continue to violate the ethics rules.

What kind of misconduct am I talking about, and what could be done about it?

Prosecutorial Misconduct in South Carolina

Our state has created an atmosphere where prosecutors control the courtroom, they control the criminal docket, and they know that they are not likely to be professionally disciplined or suffer any consequences for misconduct.

What do I mean?

The “Beatty Incident”

When Chief Justice Beatty (then he was just regular-old-justice Beatty) warned prosecutors that they had “been getting away with too much for too long,” that the Supreme Court would “no longer overlook unethical conduct such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence,” and suggested that prosecutors would be held accountable in future disciplinary proceedings, the response was overwhelming.

It was an overwhelming attack on Justice Beatty, as the SC Attorney General and thirteen of the state’s sixteen circuit solicitors released statements attacking the Justice and stating that they would seek his recusal from every criminal case that came before the Supreme Court.

At the time, Beatty had been on the SC Supreme Court for about seven years and was a SC Court of Appeals judge before that – he had plenty of opportunities to witness the activities he warned our state’s prosecutors about. What was it again?

  • Witness tampering.
  • Selective prosecution.
  • Retaliatory prosecution.
  • Perjury.
  • Suppression of evidence.

Subpoena Abuse

This is an ongoing issue that South Carolina refuses to deal with.

Although attorneys in private practice are publicly disciplined when the Office of Disciplinary Counsel (ODC) receives a report of subpoena abuse, prosecutors are not. Ever.

Subpoena abuse by SC prosecutors that ODC ignores includes:

  • Prosecutors using a clerk of court’s signature stamp to issue subpoenas, although the rule requires the clerk to issue the subpoena. I am unaware of any defense attorneys in possession of a signature stamp from the clerk’s office, and I’m pretty sure they would be arrested and charged with forgery…
  • Issuing subpoenas for documents before a case exists – a practice that the SC Bar has found is unethical, at least for non-prosecutors;
  • Using evidence obtained with an illegal subpoena – also found to be unethical by the SC Bar (for non-prosecutors);
  • Mailing illegal subpoenas to out of state witnesses that don’t comply with the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings;
  • Threatening witnesses with arrest if they do not comply with an illegal subpoena that was mailed to them; and
  • Issuing subpoenas to compel witnesses to appear at the solicitor’s conference room when there are no court proceedings, under threat of contempt of court.

Reportedly, all of the above conduct has been reported to ODC, with evidence including copies of the illegal subpoenas and transcripts where the conduct was admitted, but those grievances were dismissed.

Prosecutors Control the Docket in South Carolina. Still.

This one isn’t necessarily misconduct or a violation of the ethics rules, although it makes ethics violations more likely to happen.

Despite the SC Supreme Court finding that SC’s system, where prosecutors control the criminal docket instead of a chief admin judge or the clerk, is unconstitutional six years ago, prosecutors are still in control of the docket.

After the Langford decision, the Supreme Court issued a comprehensive docket management order that was largely ignored. Previous orders requiring time limits for disposition of cases in the magistrate courts were similarly ignored.

Even under the post-Langford docket management system, the solicitor’s offices still control the criminal dockets, choosing which cases they will call, when they will call those cases, and what judge they will appear in front of. Only when a case has languished for years without trial can the chief admin judge step in and take charge of a case’s disposition.

SC’s Grand Juries are Prosecutors’ Plaything

SC’s prosecutors have subverted the constitutionally mandated grand jury process into a convenient rubber stamp where grand jurors “true bill” indictments based on one-paragraph summaries of cases that are read by law enforcement officers with no personal knowledge of the facts – sometimes in as little as 39 seconds per case

How Can SC Force Prosecutors to Follow the Ethics Rules?

We can’t, if the trial courts, appellate courts, Office of Disciplinary Counsel, and the legislature don’t care and continue to protect unethical prosecutors.

Whether it is because they approve of the actions of unethical prosecutors or because the prosecutors are too powerful to control, SC’s guardians of justice will not or cannot impose rules on SC’s prosecutors.

Nearly One-Third of DNA Exoneration Cases Involved Prosecutorial Misconduct

65 of the first 255 DNA exoneration cases from the Innocence Project involved appeals or lawsuits alleging prosecutorial misconduct. In almost half of those cases, the courts found that there was prosecutorial misconduct, but did nothing and let the convictions stand…

The most common forms of misconduct found in the exoneration cases involved improper arguments at trial and withholding evidence of innocence.

In Most Cases, You Can’t Sue a Prosecutor for Even the Worst Misconduct

If an attorney in private practice commits malpractice – negligent, unintentional malpractice – the attorney is liable and must pay for the damage that they caused.

If a prosecutor commits “malpractice” – even to the point of intentionally framing a defendant, hiding exculpatory evidence, or suborning perjury at trial – destroying a defendant’s life and forcing them to live in jail or prison for a crime they did not commit, they cannot be sued because, with very few exceptions, they enjoy immunity.

SC Prosecutors Commit Crimes With Impunity

All the actions I listed above would be the crime of obstruction of justice if committed by a defense attorney. Suborning perjury is a separate crime. As far as I know, there have not been any criminal prosecutions of prosecutors in SC for even the most egregious conduct in wrongful prosecutions – who will prosecute the prosecutors?

Who wants to expose themselves to retaliation from prosecutors who have demonstrated they are immune to scrutiny by authorities?

Prosecutors are Rarely Disciplined in South Carolina

The Office of Disciplinary Counsel is tasked with ensuring that our state’s licensed attorneys abide by the Rules of Professional Conduct – rules that are designed to protect the public from ethically challenged lawyers.

There are a few isolated examples of prosecutors who have been publicly reprimanded or even suspended for misconduct, but they are few and far between. On the other hand, I have seen or heard examples of prosecutors who were grieved for clearly unethical conduct and received no discipline or a private reprimand at worst…

In the few cases where a prosecutor is publicly disciplined, there is no deterrent effect. In fact, following every instance of public discipline that I’ve seen in South Carolina (two?), the prosecutors not only continued to practice law but continued to work as prosecutors. 

SC’s Appellate Courts Rarely Overturn Convictions Based on Prosecutorial Misconduct

I have found only one SC appellate opinion dismissing a case for prosecutorial misconduct, although there may be others.

Some convictions have been reversed, although this is also exceedingly rare. For example, in Riddle v. Ozmint, the SC Supreme Court reversed a death penalty conviction where the “trial was rendered fundamentally unfair by prosecutorial misconduct” – where “the state” withheld exculpatory evidence from the defense and knowingly used perjured testimony during the trial.

Note that it was “the state” who committed the misconduct, not an individual licensed SC attorney with a name… Were they arrested and prosecuted for the crimes of obstruction of justice and subornation of perjury? Were they publicly disciplined for misconduct that rose to the level of crimes?

On the other hand, in State v. Inman, the Supreme Court declined to reverse a death sentence where the prosecutor threatened and intimidated a defense mitigation expert – on the witness stand in open court, threatening to prosecute the witness for practicing without a license even though the prosecutor had previously been admonished for doing the same thing in another case.

The witness was then forced to seek counsel for themselves and initially refused to testify. When the hearing was reconvened, the prosecutor subpoenaed the witness in Georgia which resulted in an attempt to have the witness arrested on the eve of the hearing – although every indication was that the witness intended to appear at the hearing.

“The solicitor’s conduct in this case was inexplicable and reprehensible,” the Court said. Yet, their conduct did not warrant reversal of the death sentence or a new hearing for the defendant. Was the prosecutor arrested and charged with obstruction of justice? Threatening a witness? Was the prosecutor publicly disciplined by the SC Bar?

New York Votes to Create a Prosecutorial Misconduct Commission

New York state’s legislature has passed a bill authorizing the creation of a commission that “would oversee the state’s 62 district attorneys and their subordinates, would be given full subpoena power for prosecutors and witnesses, be able to request relevant documents, and would be able to conduct investigative hearings against prosecutors accused of misconduct.”

The bill, which passed with bipartisan support, is waiting for the governor’s signature.

Is this a good idea? Is this a potential solution to the ethical crisis facing SC courts and prosecutors? I mean, isn’t the commission’s mandate basically the same thing that our Office of Disciplinary Counsel is supposed to be doing?

I’m skeptical – if the commission takes their job seriously and is not just another layer of protection for prosecutors, it has no authority to actually do anything when it proves misconduct. It can only “censure” prosecutors or “recommend” that they be removed from their position.

Despite New York state’s acknowledgment that there is a wrongful conviction problem that is caused, in part, by prosecutorial misconduct, NY state prosecutors appear to be the only group that is vehemently opposing the creation of the oversight commission…

Who Can Make Changes to Address the Problem?

I don’t have the answers.

But, I know that you cannot solve the problem until people know that the problem exists and they acknowledge it publicly. I don’t believe for a minute that the SC Supreme Court, SC legislature, or trial courts will be persuaded by my opinions on prosecutorial misconduct.

Possibly, my ethical and justice-oriented friends in solicitor’s offices across the state could step forward and demand accountability?

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