Abuse of the subpoena power

A recent pre-trial hearing in the embezzlement trial of Beulah and Dayo White, a mother and daughter accused of taking money from the Five Rivers Community Development Corp, has brought to light what many consider to be rampant abuse of the subpoena power by not only the 15th Circuit Solicitor’s Office, but solicitor’s offices statewide.
The first practice that has been exposed, which may or may not cross the line although it certainly raises questions, is that the clerk of court in Horry County and other counties has given a signature stamp to the prosecutor’s office – there is no need for the prosecutor to walk the 20 feet or so down the hall to the clerk’s office, they can simply pull out their stamp and sign the clerk’s name to their subpoena (or other documents?) themselves.
In civil cases, the attorneys can issue subpoenas under their own name. However, in criminal cases, the clerk of court must issue subpoenas – the clerk does not have the authority to review, approve, or disapprove a subpoena based on content, but, per the S.C. Rules of Criminal Procedure, they must be issued by the clerk:

RULE 13
SUBPOENAS
(a) Issuance of Subpoenas. Upon the request of any party, the clerk of court shall issue subpoenas or subpoenas duces tecum for any person or persons to attend as witnesses in any cause or matter in the General Sessions Court. The subpoena shall state the name of the court, the title of the action, and shall command each person to whom it is directed to attend and give testimony, or otherwise produce documentary evidence at time and place therein specified. The subpoena shall also set forth the name of the party requesting the appearance of such witness and the name of counsel for the party, if any.

Of course, providing the solicitor’s office with a signature stamp with the clerk of court’s name certainly saves time for both the prosecutor and for the clerk’s office (I am still waiting for my clerk of court signature stamp, apparently this is a privilege given only to attorneys on one side of criminal cases). Giving a stamp to the prosecutors so that they can sign the clerk’s name to subpoenas does not = the clerk issuing the subpoena. These subpoenas are issued by the prosecutor, not the clerk, and they violate the rule.
David Wren at the Sun News reports that, according to numerous solicitors from across the state, the practice is widespread:

They say clerks of court are not required to review or verify the subpoenas and that state law only calls for the documents to be issued – not signed – in the name of a clerk of court.
“If the clerk of court is rubber-stamping subpoenas anyway, what’s the difference?” said Trey Gowdy, solicitor for the state’s 7th Judicial Circuit.
Gowdy said his office prints subpoenas from a computer program that automatically downloads the clerk of court’s signature.
“We went to the clerk of court years ago to get his signature” for the computer program, Gowdy said. “The subpoenas are issued in his name, but from our office.”

Worse than this – and here we get to why this “small” violation of the rule can become a big problem – is the admission by solicitors that they have been using the clerk’s signature stamps to issue subpoenas when there is no criminal case yet pending – I have seen a few subpoenas issued without a caption or case name, but this is the first time that I have seen a prosecutor admit to the practice. Former solicitor Jay Hodge, and our own solicitor Greg Hembree argue that there is nothing wrong with the practice:

Hodge said the 4th Circuit has used signature stamps to issue subpoenas for at least 20 years and continues to do so under current solicitor Will Rogers.
Hodge and other solicitors say they also issue subpoenas prior to arrests or indictments to gather evidence that can lead to criminal charges.
“How else are your cops and [solicitors] going to get evidence?” asked Gowdy, the 7th Circuit solicitor.
Lawyers for the Whites say subpoenas in their case were improper because they were issued before a criminal case had been initiated, possibly violating the Fourth Amendment right, which guards against unreasonable search and seizure.
Greg Hembree, solicitor for the 15th Judicial Circuit, said there is little legal precedent on how subpoenas can be used for investigative purposes. Prosecutors with the S.C. attorney general’s office said state law does not expressly prohibit their use in such cases.

As 10th Circuit Solicitor Chrissy Adams notes, the proper practice is to obtain a search warrant to obtain evidence prior to an arrest. The Fourth Amendment guarantee against unreasonable search and seizure requires that a judge review the probable cause for a search and approve before the search is conducted – cops and prosecutors cannot get around the Fourth Amendment by using a fake subpoena instead of seeking a search warrant. Which brings us back to the original revelation of the solicitors issuing subpoenas and signing the clerk’s name to them – the clerk cannot refuse to issue a subpoena based on content or who it is issued to, but should a clerk refuse to issue a subpoena when it does not even reference an ongoing case? I think the clerk should if it was a subpoena presented by a prosecutor, and certainly would if it was a subpoena presented by a defense attorney – which makes it quite convenient to have a clerk of court signature stamp in your desk drawer if you are inclined to break the rules.

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