Horry County preliminary hearings – denial of due process by the defense

Looking back, it seems like about once a year I write a blog post about how our local public defender has done away with preliminary hearings for indigent clients.  It is still happening, and nothing has changed.

I don’t know what public defenders in other parts of the state are doing, but the 15th Circuit Public Defender’s Office waives all preliminary hearings for all of their clients, without consulting the client, without informing the client, regardless of whether the client insists on going forward, and apparently without even telling the clients not to appear at the preliminary hearings.

Preliminary hearing court this morning was typical – before beginning, the solicitor assigned to handle the prelims went through the docket and called each case one at a time, identifying the public defender clients who were present and informing them that their attorney has waived their preliminary hearing and that they are free to leave.  That is most of the defendants in the room.  Usually at least one puts up some resistance and informs the Court that they are not waiving their preliminary hearing and that they want to go forward with or without their public defender; today was no different.

The Judge informs them that they cannot go forward – they are represented by counsel and their attorney has waived their preliminary hearing.  They need to contact their attorney and speak with them, and the Court cannot tell them anything more because they are represented by counsel.  Several of the public defender clients point out that they have had no contact with their attorney, but this doesn’t change the analysis – the Court’s hands are tied.

I doubt that each individual public defender has contacted the Court and waived their client’s preliminary hearing.  Rather, the Public Defender’s Office has notified the Court that all preliminary hearings are waived.  Our local public defender has effectively done away with the right to a preliminary hearing for all indigent defendants in our circuit.

Why does it matter?  What is a preliminary hearing?  It is hearing before a magistrate, to determine whether there is sufficient probable cause for the case to go forward.  It is a statutory right that applies to every person accused of a General Sessions level crime in our state:

§ 22-5-320. Defendant’s demand for preliminary investigation; appearance by attorney
Any magistrate who issues a warrant charging a crime beyond his jurisdiction shall grant and hold a preliminary hearing of it upon the demand in writing of the defendant made within twenty days of the hearing to set bond for such charge; provided, however, that if such twenty-day period expires on a date prior to the convening of the next term of General Sessions Court having jurisdiction then the defendant may wait to make such request until a date at least ten days before the next term of General Sessions Court convenes. At the preliminary hearing, the defendant may cross-examine the state’s witnesses in person or by counsel, have the reply in argument if there be counsel for the State, and be heard in argument in person or by counsel as to whether a probable case has been made out and as to whether the case ought to be dismissed by the magistrate and the defendant discharged without delay. . . .

My opinion is that the preliminary hearing should rarely, if ever, be waived – you lose nothing by going forward with a preliminary hearing.  The officer takes the stand and testifies under oath, and, whether the case is dismissed or not, there are times when that testimony is invaluable and can result in a dismissal later, or it can be used to impeach the officer at trial if they try to change their testimony later.

Sometimes the case is dismissed – if it is dismissed the solicitor can still send it to the grand jury for indictment, but sometimes they do not.  If they don’t, the case is over.  If it is dismissed based on a lack of probable cause, rather than the officer not showing up, it’s a pretty clear sign that the solicitor will not get a conviction at trial, where the standard is beyond a reasonable doubt instead of probable cause.

The preliminary hearing can be waived.  The defendant can not request a preliminary hearing at all.  But this is the client’s choice, not the attorney’s.  It is the client’s right to a preliminary hearing, and, although the attorney can advise a client to waive the hearing, the right does not belong to the attorney, it belongs to the client.  Similarly, an attorney can advise a client to waive their constitutional rights and plead guilty to an offense, but it is not the attorney’s decision.

An attorney can waive a preliminary hearing at their client’s request after talking with the client about what they are giving up and the attorney’s reasons for giving it up, but an attorney can’t simply refuse to have hearings for all of their clients across the board.  I say they can’t, but they do, and it doesn’t seem to bother anyone but the defendants who feel that they are getting screwed.

Every time I write a blog post that addresses indigent defense issues, I get accused of beating up on the public defenders.  I really don’t care – if you’re a public defender and you are offended by a post like this, my opinion is you are probably one of the offenders.  If you are a public defender and you are not trying to change the system that you work in, whether it is to find more resources, to reduce your case load, or simply to refuse to shit on your clients no matter what your instructions are from your boss or the office of indigent defense, you are the problem as well.  The denial of the right to a preliminary hearing to all indigent defendants in two counties is a systematic denial of due process, more pervasive and offensive than most problems we complain about in the solicitor’s office or the police department.

And yes, I am content to snipe from the sidelines and complain about what you are or aren’t doing.  I suspect if I worked in your office, I would have to quit or be fired to comply with the ethics rules that govern attorneys.  On the other hand, if you see a way that I can help you, my door is open and I welcome you to call or email me.

12 Responses to “Horry County preliminary hearings – denial of due process by the defense

  • Stuart Sarratt
    7 years ago

    In the 13th Circuit Public Defenders office we request a preliminary hearing in every case. We do them in shifts throughout the day so there’s always a PD up there on prelim days. It’s worked out well, and we’ve gotten a lot of cases kicked that we otherwise probably would have waived.

  • I love you for writing about this. Too many of us look the other way, or keep our mouths shut, for fear of offending other lawyers. Fuck that. I’m just about done keeping my mouth shut.

  • “My opinion is that the preliminary hearing should rarely, if ever, be waived – you lose nothing by going forward with a preliminary hearing.” – you

    I completely agree. For whatever reason, though, most defendants in Memphis, Tennessee, are waiving their preliminary hearings. And its not just people represented by public defenders. Other private lawyers are simply doing blanket bind-overs for no explicable reason other than there is no rule they can’t.

    I represent a young man on a felony that already has been indicted (he waived his preliminary hearing downstairs in general sessions). Meanwhile, the client had another felony case pending downstairs, but the evidence was scant. The client had another attorney for the case downstairs. The prosecutors wouldn’t accept upfront probation, however, unless the downstairs case was dismissed.

    I told the client to ask for his preliminary hearing and not waive it, no matter what. (His bond was already revoked for the case upstairs, so there was no reason to waive it to preserve his bond.) Guess what happened?

    He waived it. When I asked why, he told me the attorney said he should waive the prelim “to preserve his bond.” I couldn’t believe it.

    There is (almost) never a good reason for waiving a preliminary hearing. Everyone should demand it. And even though 9 times out of 10 the judge will find probable cause, at least you know the evidence the state has on you. Instead, I am having to negotiate with the state without the added discovery of victim testimony, or police testimony. Good grief!

  • Northern Transplant
    7 years ago

    It was so great to know that I wasn’t the only one sitting at the preliminary hearing that morning with a “this is crazy” thought going through my mind. I especially thought it was funny to disregard the Law of the court by the judge and solicitor stating that it is routine and therefore; even if it is law it is ok because we routinely continue hearings without the officers having an extreme cause for not showing up. The hearing on March 22 were much more entertaining as one was found no probable cause by the Magistrate.

  • Gigi Crowell
    6 years ago

    On August 13, 2013 my son Prelim Hearing was waived without his consent. When he arrived at the hearing he was told by the clerk that his public defender wavied the hearing. Now his bond is being modified. What can he do to help himself? Should he contact the public defender’s supervisior? Or when he goes before the bond modification judge should he tell that judge that he didn’t receive due process? Any help would be valued. A very concern mother.

    • As indicated in the original post, it is standard operating procedure for public defenders in Horry County to waive their clients’ preliminary hearings without consulting them. I don’t know about the county that your son is in. There is no supervisor to complain to – the Circuit Public Defender makes the decision to waive all preliminary hearings.

      He can complain to disciplinary counsel, for what it’s worth. Although it is common practice, it is not ethical to waive a preliminary hearing without consulting the client. http://www.judicial.state.sc.us/discCounsel/

      • Endeavour
        6 years ago

        Bobby Frederick,

        What an interesting and informative blog.

        Not living in Horry County, I can’t understand why preliminary hearings are automatically waived by the all the PD’s. How can that be?

        I can’t see any advantage for the defendant. What is the reason they do this? Is there any attempt at rationalization? Any legal basis at all?

        Is it simply laziness?

        Thank you in advance.

  • The Horry County Public Defenders Office recently started attending prelims, and they have been doing a good job challenging cases from what I’ve seen so far.

  • please give me a call ,…i like the things you say,…but i have some good shit for you to hear,..call me at 828-301-2913,..carlos

  • I was falsly arrested with no probable cause because I refused telling the ‘cops’ my name while visiting my daughters home. They threw ‘failure to give name’ and then when I was released, ‘obstruction of justice’ was my charge, ‘what is this probable cause determination’?!? Did I miss it, are defendants informed of this?!? I was left in his squad car, 90 degrees that day for about 20 minutes, which was about 115-120 and I almost past out from lack of air. Please tell me they didn’t have some court mtg. without me being notified. I am also disabled.

  • I live in Hobbs NM, out of 127 cases only 12 of them had a preliminary hearing only 1 went to jury trial 6 dismissed all others took a plea. This was just on 1 docket 1 judge. Is this normal.

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