“The pendulum has been swinging in the wrong direction for too long . . .”
S.C. Lawyer’s Weekly reported a couple of weeks ago that, at the Solicitor’s Conference in September, Justice Beatty of the S.C. Supreme Court told the assembled prosecutors that the Supreme Court 1) will no longer tolerate prosecutorial misconduct, and 2) that the Solicitors’ efforts to re-take control of the docket through legislation will not be successful. The S.C. Lawyer’s Weekly article is behind a paywall, unfortunately. According to a summary of Beatty’s comments that was written by prosecutors in attendance:
Beatty told prosecutors that for too long the Court had turned a “blind eye” to their abuses and misdeeds, such as witness intimidation and tampering, selective and retaliatory prosecution, perjury, and the suppression of exculpatory evidence.
Beatty is quoted as saying, “The pendulum has been swinging in the wrong direction for too long and now its going in the other direction. Your bar licenses will be [in] jeopardy. We will take your licenses.”
Prosecutors immediately united in solidarity to attack Justice Beatty – thirteen of sixteen circuit solicitors have announced that they will seek to recuse Justice Beatty from hearing any criminal cases or ruling on any grievances filed against prosecutors. As stated in a press release from the South Carolina Association of Criminal Defense Lawyers, “a hit dog will holler.”
Justice Beatty’s comments may have been improper, to the extent that he commented on cases that may come in front of the Supreme Court that have not yet been ruled upon. In his defense, the comments were made in a private forum, and would not be public if not for the press that was initiated by the solicitors themselves. Regardless of the propriety of Beatty’s statements, what matters is the truth of the statements – most defense lawyers in the state, and probably some prosecutors, will support the truth of his statements from their own experience.
A Supreme Court justice has finally not only acknowledged the pervasiveness of prosecutorial misconduct in our state, but has also acknowledged that he and the rest of the Court have been seen it, they know what is happening, and they’ve been ignoring it. Why do prosecutors get the deference that they have been receiving from the courts? I don’t know, but I can speculate. Most legislators are supportive of law enforcement and prosecutors. In South Carolina, the legislature elects our circuit court and appellate court judges. Perhaps our judges fear a backlash if they dare to criticize police or prosecutors, similar to the backlash that Justice Beatty is experiencing now.
Justice Beatty has provided some hope that the pendulum might begin to swing the other way in our state, that maybe, just maybe, our judges are fed up and will begin enforcing the law and disciplinary code against prosecutors as well as the rest of us. The test will be in the months and years to come, as we watch the decisions issued by our Supreme Court. The comments may have been inappropriate but they were truthful, they were appreciated, and attorneys across our state are hoping that they were not empty words.
H/T to Scott Greenfield, who picked up the story and notes that “[w]hen a judge rails against the evils of crime, the reaction ranges from applause to re-election. When a judge rails against the evils of prosecutorial misconduct, there is a very different reaction.”