Do Prosecutors Still Control the Docket in SC?

On November 21, 2012, the SC Supreme Court decided State v. Langford – a bombshell opinion that said SC Code Section 1-7-330, which gives control of the criminal docket in SC to prosecutors, is unconstitutional because it violates the Separation of Powers Clause of the SC Constitution.

Over six years later, do prosecutors still control the docket in SC?

Surprise! Yes, they do.

But after six years and thousands of criminal convictions in a prosecutor-controlled court system that the SC Supreme Court has said unequivocally is unconstitutional, we now have our first “pilot program” that takes control of the docket away from the solicitor’s office in Charleston, SC.

Langford Languishes in Limbo

State v. Langford held that it violates the SC Constitution’s Separation of Powers Clause for the Solicitor’s Offices (the executive branch) to be in control of the criminal trial docket (the judicial branch).

The SC Supreme Court and local courts then implemented a series of docket management orders, each of which pretended to give control of the docket to the courts while, for the most part, leaving the prosecutors in charge.

For the past six years, Langford’s promise of an equal playing field in the criminal courts has gone unfulfilled, and thousands of defendants have continued to be convicted in a court system that has been declared unconstitutional…

Why are Prosecutors in Control of the Criminal Docket?

SC Code Section 1-7-330 gives exclusive control of the criminal docket to the circuit solicitors (prosecutors):

The solicitors shall attend the courts of general sessions for their respective circuits. Preparation of the dockets for general sessions courts shall be exclusively vested in the circuit solicitor and the solicitor shall determine the order in which cases on the docket are called for trial. Provided, however, that no later than seven days prior to the beginning of each term of general sessions court, the solicitor in each circuit shall prepare and publish a docket setting forth the cases to be called for trial during the term.

What’s the problem?

Would you see a problem if the civil trial docket was controlled exclusively by plaintiff’s lawyers? Plaintiff’s lawyers can create the trial roster and insurance defense attorneys can try their case when the plaintiff’s lawyer says they are ready? Aaaand the plaintiff’s lawyer gets to pick their judge also? Because that’s what is happening in SC’s criminal courts…

Why is Solicitor Docket Control a Problem?

I suppose SC just doesn’t trust those sneaky plaintiff’s lawyers, and so we give control of the civil docket to the clerk’s office. Prosecutors, on the other hand, are all naturally upstanding, fair, and honest lawyers whom we can trust. Right?

Well, how has it worked in practice?

Judge Shopping: Prosecutors can choose which judge they call their case in front of. It’s a guilty plea but you want the defendant to get hammered? Schedule it in front of a hangin’ judge. A guilty plea and you want them to get off light? Schedule it in front of a light sentencing judge.

Case going to trial? You can choose your judge based on the issues in your case and call it for trial in front of the “right judge.”

Motion hearing? Choose your judge and schedule the motion hearing during the week they are on the bench…

Coercion: Defendant doesn’t want to plead guilty and you don’t want to be bothered with a trial? Don’t put the case on the trial roster.

If they are in jail and can’t make bond, they’ll break eventually. Even if they are not in jail, how long will they go with charges hanging over their head as you “roll call” them into court every month before they break and accept a guilty plea?

Harassment: Again, you don’t have to put the case on the trial roster – just keep noticing the defendant to court and let the case drag on until they see the light and plead guilty. If you are lucky, they will miss a roll call and you can issue a bench warrant for their arrest (see “coercion” above).

Fundamental Fairness: No one thinks that South Carolina’s criminal justice system is a fair system that respects the rights of accused citizens.

Most people will tell you that prosecutors have unfair advantages in the criminal courts. Why? Because they do

Six years after the Langford decision, can we finally take control of the docket away from the prosecutors and give it to a neutral party?

Charleston’s “Pilot Program”

According to a Ninth Judicial Circuit (which includes Charleston County) administrative order, control of the docket in the Ninth Circuit has been taken from the Solicitor and given to the Clerk’s Office:

As of March 31, 2017, the Solicitor is no longer responsible for determining the General Sessions Docket. At the direction of Chief Justice Beatty, this authority was transferred to the Chief Administrative Judge for General Sessions (hereinafter, “the Chief Judge”) for an indefinite period of time as part of a pilot program in Charleston County. In the future, the Chief Judge may expand this pilot program to Berkeley County.

So, six years after the SC Supreme Court determined that the docket control system was unconstitutional, we have a “pilot program.” You know, to just give it a spin and see how it works…

FYI, we don’t need a pilot program in one county – we need reform in every county now. Well, six years ago would have made sense, but now will do.

What’s in the Ninth Circuit Administrative Order?

The Charleston County administrative order, which needs to be immediately expanded to Horry, Richland, Lexington, and every other SC county, includes the following common-sense provisions:

  • The Solicitor’s Office does not control the criminal docket;
  • The Clerk of Court must create the position of “General Sessions Court Coordinator” (like the Common Pleas Court Coordinator – note that plaintiff’s lawyers do not control the civil docket, the clerk does);
  • The Clerk of Court will prepare and publish the Jury Trial Docket at least 45 days before each term of court;
  • Each docket will have at least 30 cases that will be tried in the order that they appear on the docket;
  • Prosecutors and defense lawyers will have to request a continuance if they are not ready to go forward – instead of defense lawyers begging their opponent, the prosecutor, for a continuance, both parties are now in the same position;
  • Assigned case tracks – cases will be placed on the roster (by the clerk’s office) 8 months, ten months, or one year after arrest depending on the seriousness of the offense;
  • Provisions for mediation conferences, scheduling conferences, and scheduling orders to help resolve cases whenever possible, to streamline evidentiary issues at trial, and to provide additional time to prepare for complex trials; and
  • Pretrial motions will be scheduled by the clerk’s office during nonjury terms of court.

There’s more – read the Order.

Can we stop delaying and just implement this statewide? Is it okay with our Supreme Court and our circuit court judges that every conviction since November of 2012 has been obtained in an unconstitutional justice system?

Columbia, Lexington, and Myrtle Beach, SC Criminal Defense Lawyer

Lacey Thompson limits her practice to criminal defense cases in the Columbia, Lexington, and Myrtle Beach areas of South Carolina.

If you have been arrested and charged with a crime in SC, or if you believe you are under investigation, call us now at 843-444-6122 or send Lacey an email to talk with a SC criminal defense attorney today.

docket control, charleston administrative order

5 Responses to “Do Prosecutors Still Control the Docket in SC?

  • “Assigned case tracks – cases will be placed on the roster (by the clerk’s office) 8 months, ten months, or one year after arrest depending on the seriousness of the offense;…”

    I don’t understand why it is necessary to schedule the cases so far out.
    If it’s a DUI case, wouldn’t the defendant’s life be on hold for that long? Or on a steady (or rapid) decline?

    • Chaz – I agree – most cases that are going to trial have been taking two or more years, though. A general sessions case that goes to trial in 8 months would be unheard of.

      Most DUI cases are not in general sessions court, which is the court that the Charleston admin order applies to. Most DUIs are DUI first offense in the magistrate or municipal courts (the lower courts). Cases move faster in the lower courts, but, in some cases, it could take as long as a year for a DUI to get to trial.

  • To more accurately point to the article –

    What does it take to get an unconstitutional statute repealed (?)?

    After the History of the statute at 1-7-330 is this gem:
    “Validity
    For validity of this section, see State v. Langford, 400 S.C. 421, 735 S.E.2d 471 (S.C. 2012)”
    If it’s unconstitutional, then it’s NOT VALID!
    Why is it still on the books???

    • Chaz – Once the courts have said that a statute is unconstitutional then it is no longer valid. The legislature doesn’t have to repeal it or change it, although they can and sometimes do. It doesn’t matter, though – if it is unconstitutional, it is not valid law and cannot be enforced.

  • I understand your point, Lacey, but how many people are going to know that it’s unconstitutional unless they research it, or subscribe to something (like a great blog – hint hint) that points it out.
    Six years to do nothing smacks of an agenda especially since the practice hasn’t been changed except for a ‘pilot program’. After all, how many joint resolutions can you participate in, thanking everybody for being so great or giving condolences before you actually do something useful…
    No excuse.

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