Prosecutor Suspended for Withholding Evidence

California’s State Bar recommended three years of probation beginning with a one-year suspension as sanctions for Orange County prosecutor Sandra Lee Nassar for withholding evidence from defense counsel in a child abuse case.

The state bar judge who issued the opinion points out that prosecutors must follow the law…

A prosecutor’s failure to timely turn over exculpatory and impeachment evidence is extremely serious misconduct,” Judge Roland wrote in an opinion published this week. “Even when facing difficult situations, such as the protection of witnesses, prosecutors must operate within the confines of the law.

When prosecutors in South Carolina violate the law or the ethics rules that govern attorneys, are they similarly disciplined?

Does the SC Office of Disciplinary Counsel (ODC) Regulate Prosecutors or Protect Them?

I have been told by defense attorneys not to bother filing a grievance on any prosecutor, although it is an ethics violation to not report misconduct, because ODC will not act on it.

I have been told by a local defense attorney that when they filed a grievance, with supporting affidavits, on a prosecutor who physically assaulted them in the courtroom, the defense attorney instead received a letter of caution.

Just reviewing the prosecutorial misconduct category on this blog, most of which was written by the blog’s former owner, I find more examples of SC prosecutors who were protected by ODC:

Complaints Against the 9th Circuit Solicitor’s Office

When our state’s criminal defense association (SCACDL) filed a grievance on the 9th Circuit Solicitor’s Office for numerous ethical violations including the suppression of evidence, that grievance was dismissed by our state’s ODC.

The SC Attorney General’s Office, tasked with supervision of all prosecutors’ offices in the state, declined to investigate the ethical violations occurring in the 9th Circuit Solicitor’s Office, citing a lack of resources to undertake such an investigation.

When our current Chief Justice Donald Beatty warned prosecutors at a solicitor’s conference that the Supreme Court would “no longer overlook unethical conduct such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence,” the state’s solicitors, including the 9th Circuit Solicitor, signed onto a public letter sent to the Attorney General stating that they would seek Beatty’s recusal in future cases.

Let’s re-read that quote from Beatty: they will “no longer overlook unethical conduct such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence.” That was over three years ago, and I have not seen any bar prosecutions for “witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence.”

Could it be the violations are no longer happening? Or is the Supreme Court continuing to overlook them?

Docket Control

In 2012, the S.C. Supreme Court held in State v. Langford that prosecutor control of the criminal docket is unconstitutional and violates the S.C. Constitution’s Separation of Powers Clause. It allows the prosecutor to choose when a case is called for trial and what judge will hear the case, when a defendant pleads guilty and what judge hears the plea, and it allows prosecutors to hold defendants in jail while their case is pending and the defendant has no real power to demand a trial. In many cases, it will take years for their case to be called for trial giving prosecutors unfair leverage in forcing guilty pleas from defendants who may be innocent. Yet, the Supreme Court has still not taken any meaningful steps to take that control away from prosecutors.

Subpoena Abuse in the 15th Circuit

Prosecutors in Horry and Georgetown Counties have engaged in rampant abuse of the subpoena power for decades with impunity. At a pretrial hearing in a 2009 case in Horry County, the Clerk of Court and others testified under oath that illegal use of subpoenas had been ongoing in Horry County since at least 1986 through 2009 when the hearing took place.

  • Criminal subpoenas in SC must be signed by the Clerk of Court. In Horry and Georgetown Counties, the prosecutor’s office had obtained a stamp with the clerk’s signature and distributed it to their office’s investigators, who would then stamp and issue subpoenas at the direction of prosecutors, bypassing the clerk’s office completely.
  • Criminal subpoenas, per SC Rule of Criminal Procedure 13(a), must be issued for a “cause or matter in the General Sessions Court,” must state the name of the court, and must state the titled of the action. The Horry County solicitor’s office, bypassing the clerk of court, regularly issued subpoenas titled “State v. Criminal Investigation,” with a made-up case number or no case number at all, and issued them to obtain evidence before there was even a court case.
  • Prior to a court case being opened, it is a violation of defendants’ Fourth Amendment rights and their rights under Article 1, Section 10 of the S.C. Constitution to seize property without a search warrant issued only after a neutral magistrate determines that there is probable cause. Horry County solicitors routinely issued these subpoenas before any case was opened instead of seeking a search warrant from a judge.
  • Horry County solicitors have mailed subpoenas to out-of-state witnesses without complying with the rules for out-of-state subpoenas, found in S.C. Code Section 19-9-10, in some instances threatening to arrest witnesses if they did not comply with the illegal subpoenas.
  • Horry County solicitors have routinely issued subpoenas directing witnesses to appear at their conference room under threat of contempt of court.

Some, if not all, of These Practices Continue Today. Why?

In 2001, the S.C. Bar’s Ethics Advisory Committee issued Ethics Advisory Opinion 01-05, which clearly states that it is unethical conduct for a prosecuting attorney to:

  1. Obtain and serve a subpoena duces tecum during a criminal investigation prior to the issuance of an arrest warrant or true billed indictment; or
  2. Use the subpoenaed information in a criminal prosecution, even if the attorney using it was not involved in the issuance of the subpoena.

Despite this, it has been a routine practice throughout the state and in Horry County, even after the opinion was issued in 2001. I am told that a local attorney filed a grievance on a local solicitor several years ago, submitting copies of subpoenas and the witnesses’ contact information. The subpoenas had been altered to add an additional threat of jail if the witness did not comply, and the witnesses were directed to appear at the solicitor’s office conference room for interviews. The grievance was summarily dismissed without explanation.

In contrast, the Supreme Court has issued a public reprimand to a family court lawyer for failing to notice opposing counsel that she had issued a subpoena in a civil case. They have also issued a public reprimand to a family court lawyer who issued a subpoena, with misleading information on it, when there was no court case pending…

Despite the widespread practice of prosecutors engaging in the same subpoena abuse that the private family court lawyer was accused of, there is not a single case disciplining a prosecutor. The abuse of the subpoena power is also a tort called “abuse of process” (the malicious and deliberate misuse of regularly issued civil or criminal court process that is not justified by the underlying legal action), that would be a valid cause of action… against anyone other than a prosecutor who enjoys absolute immunity.

You cannot sue a prosecutor for unethical conduct, for violating defendant’s civil rights, or even for breaking the law. It’s extremely rare that a circuit court judge or appellate court justice will find prosecutorial misconduct occurred, and even more rare that a conviction is oveturned based on it. Prosecutors do not get arrested or face charges for violating defendants’ civil rights or for violating laws, just as police are not charged or prosecuted even when there is clear evidence of perjury. ODC refuses to discipline prosecutors for the same ethical violations that warrant a career-damaging public reprimand for a private small firm attorney.

What incentive is there for prosecutors to follow the law or the ethics rule in South Carolina?

Myrtle Beach, Columbia, and Lexington SC Criminal Defense Lawyer

The Thompson Defense Firm only accepts criminal defense cases in the Horry County, Richland County, and Lexington County areas. If you have been charged with a crime or if you believe that you are under investigation, call us now at 843-444-6122 or fill out our online contact form to set up a free consultation.

 

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