Right to Counsel in SC Magistrate Courts

In 2009, the National Association of Criminal Defense Lawyers (NACDL) released a comprehensive report that detailed the systematic denial of the right to counsel in magistrate and municipal courts nationwide including in South Carolina.

The findings and recommendations in that report were mostly ignored by South Carolina courts and the South Carolina legislature, and not much has changed since then. The Chief Justice of our Supreme Court at the time, Justice Toal, not only seemed unconcerned about our state’s systematic denial of due process but actually instructed magistrate and municipal court judges not to appoint counsel for indigent defendants.

In a memo issued September 15, 2017, however, our new Chief Justice has informed magistrate and municipal court judges that they are to stop sentencing defendants to imprisonment without the benefit of counsel…

The NACDL Report and Current State of the Right to Counsel in SC

The NACDL report found that “every year literally millions of accused misdemeanants, overwhelmingly those unable to hire private counsel, and disproportionately people of color, are denied their constitutional right to equal justice.” They found that, in many cases, no representation was provided for indigent defendants charged with minor offenses.

When a public defender is provided, the report found that “crushing workloads often make it impossible for the defender to effectively represent her clients.” There is not enough time for the attorney to spend on each case, and they often do not have access to necessary resources like investigators, experts, and legal research tools. Crushing workloads with a lack of resources leads to wrongful convictions, guilty pleas by innocent defendants, and ethical violations.

Former Chief Justice Toal, before the report was issued, instructed our state’s magistrate and municipal court judges to ignore the U.S. Supreme Court and not to appoint counsel in misdemeanor cases:

Alabama v. Shelton [is] one of the more misguided decisions of the United States Supreme Court, I must say. If we adhered to it in South Carolina we would have the right to counsel probably … by dragooning lawyers out of their law offices to take these cases in every magistrate’s court in South Carolina, and I have simply told my magistrates that we just don’t have the resources to do that. So I will tell you straight up we [are] not adhering to Alabama v. Shelton in every situation.


RE: Sentencing Unrepresented Defendants to Imprisonment

Our current Chief Justice issued a memo dated September 15, 2017, which reverses Toal’s directive and instructs magistrates and municipal court judges, at least in cases where defendants will be sentenced to imprisonment, to either appoint counsel or have them waive their right to counsel on the record:

It has continually come to my attention that defendants, who are neither represented by counsel nor have waived counsel, are being sentenced to imprisonment.  This is a clear violation of the Sixth Amendment right to counsel and numerous opinions of the Supreme Court of the United States. All defendants facing criminal charges in your courts that carry the possibility of imprisonment must be informed of their right to counsel and, if indigent, their right to court-appointed counsel prior to proceeding with trial.  Absent a waiver of counsel, or the appointment of counsel for an indigent defendant, summary court judges shall not impose a sentence of jail time, and are limited to imposing a sentence of a fine only for those defendants, if convicted.  When imposing a fine, consideration should be given to a defendant’s ability to pay.  If a fine is imposed, an unrepresented defendant should be advised of the amount of the fine and when the fine must be paid.  This directive would also apply to those defendants who fail to appear at trial and are tried in their absence.

I am mindful of the constraints that you face in your courts, but these principles of due process to all defendants who come before you cannot be abridged.

What does the United States Supreme Court say about the right to counsel for misdemeanor defendants? Since the 70s, they have consistently held that a defendant is entitled to the assistance of counsel, even in a misdemeanor offense, if they are sentenced to jail. This means that magistrates do not have to appoint counsel for every indigent defendant, although I believe they should. It means that, if the magistrate does not appoint counsel, the court cannot sentence the defendant to jail. It means that, in cases where there is a mandatory minimum sentence such as some DUI, CDV, and DUS offenses, they must appoint counsel.

  • Argersinger v. Hamlin, 407 U.S. 25 (1972) held that, absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at trial.
  • Scott v. Illinois, 440 U.S. 367 (1979) again held that the Sixth and Fourteenth Amendments to the United States Constitution require that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.
  • Alabama v. Shelton, 535 U.S. 654 (2002) held that, even if a defendant receives a suspended sentence, they have a constitutional right to counsel.

I have seen defendants in the magistrate court ask for counsel and they were denied. There are few cases where a magistrate has appointed counsel to represent an indigent defendant. I have seen defendants attempting to represent themselves and it was a train wreck every time. Ordinary people who are not trained in the law or courtroom procedure cannot effectively represent themselves, and the stakes, even in the magistrate court, are too high for us to routinely get it wrong.





3 Responses to “Right to Counsel in SC Magistrate Courts

  • ” instructed magistrate and municipal court judges not to appoint counsel for indigent defendants.” Is that what is called a Constitutional tort?

    And now, my main concern with this article. There is no “right to counsel”. This is a misrepresentation of Article 6 of the Federal Constitution.

    “In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defence.”

    “Assistance of counsel” does NOT mean representation, no matter how lawyers want to spin it. Which is why, I believe the application for Public Defender is unconstitutional. According to the Clerk Of Court in Pickens County, the State does not allow for “hybrid” defenses.

    There are several good reasons for wanting ‘assistance’, rather than representation, one of which is stated in your article, many Public Defenders are overwhelmed and not able to properly defend your case.

    Yes, I understand that there is already much confusion in the ranks concerning this. Probably as much confusion as a judge appointing Standby Counsel.

    However, a Public Defender should be able to provide counsel concerning, at least, help with how the court rules, rules of evidence, rules of criminal procedure and the law concerning your charges affect your case.

    My point is, should lawyers decide that the Constitution means something different that the plain language in Article 6?

    It’s interesting that our SC Constitution doesn’t mention this right. The SC Magistrate and Municipal Court Judges Benchbook says that the right in SC is expressed in the 14th Amendment of the US Constitution. Really? I believe our SC constitution has over 200 amendments. We can’t take the time to put it in ours?

    Also, the courts have you APPLY for a Public Defender. Indigent defendants have to scrape up the forty bucks, pay in advance, just to apply, and if you gross over $150/week, you don’t qualify.

    Perhaps next we could address a few of the issues surrounding Family Courts. The Process is served by the Civil Division of the County Sheriff. The letter you are sent in the mail concerning picking up the process papers state clearly (in ALL CAPS, no less), “THIS IS NOT A CRIMINAL MATTER. BY COMING IN, YOU WILL NOT BE DETAINED AND YOU ARE NOT SUBJECT TO ARREST OR DETENTION.”
    If it’s a civil matter, why are many people going to jail for a debt? It seems like, in my ignorant, unschooled opinion, that child support arrears are a breach of contract. Correct? My point is, that many, many people are being sent to debtor’s prison, which is strictly forbidden by the SC Constitution. How do they get away with that? Public Defender? I don’t think so! Jury trial? Nope. It involves the possibility (probability) of jail time. Told of appeal process? No again.
    I remember many years ago, I was ruled in for child support arrearage. My transmission went out and I had to have it repaired, and I was caught up by the time I got to court. Forty three of us showed up for court that morning. Three of us walked out of the courtroom headed for home instead of the stocks. THREE OUT OF FORTY THREE WENT FREE!

    By the way, anyone in the Greenville area interested in hiring a vet that will be going to school to be a paralegal?

    • Hi Chaz – there really is no confusion about the constitutional right to counsel. The U.S. Supreme Court interprets the Constitution and, since Gideon, has consistently found that, if you are charged with a crime and receive jail time, you are entitled not only to counsel but to effective assistance of counsel.

      There is, however, confusion over hybrid counsel, what it means, and whether you have a right to it. The answer depends on what jurisdiction you are in (federal, state, and which state). It is clear that you are constitutionally entitled to: 1) effective assistance of counsel; or 2) represent yourself. In some cases, courts will permit hybrid representation where a defendant represents themselves but are advised by a public defender.

      I’m not familiar with any cases that interpret it, but the S.C. Constition Article I Section 14 arguably creates a constitutional right to hybrid counsel: “…and to be fully heard in his defense by himself or by his counsel or by both.” The phrase “or by both” seems to contemplate hybrid counsel…

      • Lacey,
        ” if you are charged with a crime and receive jail time, you are entitled not only to counsel but to effective assistance of counsel.”
        Is this saying that AFTER the hearing, if the court pronounces jail time, that you get effective assistance of counsel, rather than if jail time is a possibility, then you get assistance of counsel BEFORE the hearing? (Thanks!)

        JURISDICTION – Greenville, SC

        Since the right to assistance of counsel is not mentioned in our (South Carolina) Constitution (at least, I couldn’t find it), does that mean that it automatically goes to the issue in the National Constitution as provided for in Article 6?
        (I’m not familiar with any cases that interpret it, but the S.C. Constition Article I Section 14 arguably creates a constitutional right to hybrid counsel: “…and to be fully heard in his defense by himself or by his counsel or by both.” The phrase “or by both” seems to contemplate hybrid counsel…)
        In order to get a public defender in Greenville and/or Pickens County, you must apply and sign a form, after giving them your $40, that states that the Public Defender will be your ‘representative’. After showing and reading Article 6 of the federal Constitution to the Clerk of Court, Pat Welborn, he refused and told me that they don’t provide hybrid defenses. Since I didn’t / wouldn’t sign the form under that constraint, I asked for my $40 back. He refused and put down “Refused to sign” on the signature line! INDIGENTS have a hard time coming up with $40, so to arbitrarily keep it is surely wrong! “seems to contemplate hybrid counsel” is not contemplated by Clerks of Court up here…lol. If “arguably creates” is so, and the counties won’t do it, where would it be argued, in Federal District courts, and as a deprivation of rights?
        Which begs the question, “What needs to be done so that an indigent like myself, can get the hybrid defense” that you and I agree is valid?
        (The phrase “or by both” seems to contemplate hybrid counsel…) could also be read as, “Go get yourself a private attorney, and you can both be heard.” Correct? If so, I think that is how they are contemplating it.

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