Prosecutorial Misconduct in SC – Why it is Still Happening

In State v. Dean, decided last month, the SC Court of Appeals upheld the defendant’s grant of a new trial after the Greenwood County Solicitor’s Office was caught red-handed lying to defense attorneys and to the court.

It’s a rare case where a SC appellate court addresses the effects of prosecutorial misconduct in SC. Except, the Court refused to call it prosecutorial misconduct. The Court of Appeals refused to call it prosecutorial misconduct. And it was not a reversal of a conviction based on prosecutorial misconduct – the State was appealing the grant of a new trial to the Defendant.

What happened in the Dean case, and why is prosecutorial misconduct in SC still rampant? Brady violations, subornation of perjury, and subpoena abuse are commonplace throughout the state because disciplinary authorities, trial courts, and the appellate courts refuse to address it. Why?

State v. Dean – What Happened?

Edward Lee Dean was arrested and charged with burglary first degree after guns and office equipment connected to a burglary were found underneath his home. Of course, possessing stolen items is not burglary – it’s possession of stolen items, a difference of a maximum sentence of 30 days or a maximum sentence of life in prison.

Soon after, another individual named Gaston was arrested for an unrelated burglary and told the police that he, along with Dean and another codefendant, had committed the burglary that resulted in the stolen items being found at Dean’s home.

Why does someone who has just been arrested give information to the police about an unrelated case? Always, without fail, defendants give information to the police to “get help” on their pending charges. Defendants know this, prosecutors and police know this, defense lawyers know this, and judges know this.

And yet, in most cases, prosecutors insist on maintaining the lie that their witnesses are only testifying “out of the goodness of their hearts” because they “just want to tell the truth.”

Before trial, during trial, and after trial, prosecutors and Gaston insisted that there were no deals and he was receiving nothing for his cooperation against Dean. A skeptical judge Addy at Dean’s trial ordered that he would retain jurisdiction of Gaston’s cases and hear his guilty plea following Dean’s trial, but still sentenced Dean to 25 years in prison after his conviction.

The prosecutors then took Gaston to a neighboring county – a year later – for his guilty plea in front of a different judge, where thirteen indictments against him were dismissed, the remaining counts were reduced, and he received a probationary sentence – in exchange for his cooperation in testifying against Dean.

When Dean’s attorneys found out, they filed a motion for a new trial in front of Dean’s trial judge, who granted the motion based on “newly discovered evidence” – namely, the admissions by the solicitor’s office on the record during Gaston’s plea hearing that they had lied during Dean’s trial…

The State then appealed Dean’s grant of a new trial – the Court of Appeals denied the State’s appeal and allowed the new trial to stand.

Why Prosecutorial Misconduct in SC is Business as Usual

Despite the on-the-record evidence of the Greenwood County Solicitor’s Office’s misrepresentations (polite legalese for lies), the trial court and appellate courts refused to call it prosecutorial misconduct. And don’t hold your breath waiting for the ethics opinion disciplining the prosecutors – it won’t happen.

The Prosecutors

Pretrial, the defense attorneys moved to compel the state to produce Brady material – you know, things like the promises they made to their star witness – and the prosecutor repeatedly lied to the Court about their discussions with Gaston:

During the pretrial hearing on December 11, 2013, the State informed the court it was calling two of the three co-defendants’ cases, Dean and Anderson, to trial and that Gaston was testifying against both. The trial court asked the State whether it had made any arrangements or deals with Gaston. The State responded that it had made no offers to Gaston. Dean’s counsel responded that he had a “hard time believing that Mr. Gaston is testifying in order to give information to help the State seek a prison sentence of life without the possibility of parole… And [he] can’t believe that [Gaston’s counsel] would allow [Gaston] to do that unless they had some sort of assurances that they were going to get some benefit from the State.” The court asked the State a second time whether any deals had been made with Gaston and the State assured the court that no deal had been made.

During Dean’s trial, Gaston testified, without correction by the solicitor’s office, that he expected no benefit in exchange for his testimony:

Gaston testified on cross-examination that he was not testifying “in order to get out of that trouble,” but because he was “[j]ust being honest.” 2 Gaston stated he was not expecting any benefit in exchange for his testimony. Dean’s counsel asked Gaston whether he “plan[ned] to enter plea negotiations with the prosecutors” and Gaston responded, “No, sir.”

The prosecutors then waited 11 months before taking Gaston in front of a different judge in a neighboring county where prosecutors informed the Court that Gaston was, in fact, getting substantial consideration for his testimony in Dean’s case, because, as Gaston’s attorney said during the hearing, “that’s the way these things are done, Judge…”

Assistant Solicitor Sheek from Greenwood County then informed the court that the State was dismissing all thirteen indictments against Gaston for his cooperation in testifying against Dean and Anderson…

Assistant Solicitor Sheek… told the court, “[l]ikewise, Judge, the understanding with [Gaston’s counsel] was we would certainly convey to the [c]ourt if he cooperated in the trials but other than that there were no deals made beforehand.”

Greenwood County Solicitor Stumbo asserted in an email to the judges and defense counsel prior to the new trial hearing that “Assistant Solicitor Odom stated on the record to the trial court that Gaston was told his cooperation would be considered and taken into account when his charges were dealt with at a later date.”

Except that apparently did not happen on the record, at least not during Dean’s trial – the assistant solicitor at Dean’s trial, according to the Court of Appeals, clearly denied any discussions with Gaston about his pending charges.

The Judge

At Dean’s motion for a new trial, upon learning that the solicitor’s office had lied to him in open court, the judge was clear that he would not question the Solicitor’s integrity:

Honestly, Solicitor, the thing that the [c]ourt is struggling with more than anything else is, and I’ve said this before in front of everyone assembled here, I always try to be the man of my word. I promised that I would assume jurisdiction of the other two cases… But, again, what this [c]ourt is struggling with more than anything else is the integrity of the [c]ourt, not so much your integrity, Solicitor…

When the Court has learned that an attorney appeared before it and brazenly lied to the judge, you would think the Solicitor’s integrity would be exactly the Court’s concern.

But it was not – the Court went out of its way to assure the prosecutor that the Court was not questioning the prosecutor’s integrity, and ordered a new trial because “the [c]ourt is more concerned about the promises that I made to Mr. Dean, to retain jurisdiction over the other co-defendants. And it just – it doesn’t look right…”

The Court acknowledges only that the defense lawyers “feel that there was some deal,” but found that it was not necessary to address that in the hearing:

Additionally, the court stated that while Dean and Grose “clearly feel that there was some deal. There was some back room deal. I don’t see where it’s necessary at all to reach that point or to address that. On re-trial, that kind of thing, can be addressed through Gaston or Anderson.”

At best, the Court ordered a new trial and expressed concern that he was unable to retain jurisdiction over Gaston’s plea. He did not censure, question, or even seem concerned about the brazen lies told by the Solicitor’s attorneys in his courtroom.

The Court of Appeals

The Court of Appeals, likewise, did not censure or express concern over the dishonesty and ethical violations committed by the prosecution. Instead, they upheld the trial court’s decision to grant a new trial because they were “confined by an extremely limited ‘abuse of discretion’ standard of review” and there was some evidence to support the trial court’s decision.

They noted that “the trial court was primarily concerned with upholding the integrity of the court” and that “Judge Addy stated he did not doubt the integrity of the Eighth Judicial Circuit Solicitor’s Office,” but that they shared the lower court’s concern “for the appearance of “judge shopping” in this case.”

They don’t mention prosecutorial misconduct, and they are careful not to characterize the prosecutors’ actions as unethical or misrepresentations. They don’t even say that the prosecutors were “judge shopping” – rather, they are concerned about the “appearance of judge shopping.”

This is Why There is Rampant Prosecutorial Misconduct in SC

Prosecutors in SC are making misrepresentations to the Court, systematically committing Brady violations, and routinely committing other ethical violations that, in some cases, deny defendants their right to a fair trial.

They are doing this with impunity because our trial courts, our appellate courts, and disciplinary counsel are allowing it to happen. Why? Are our state’s judges afraid of retaliation by the state’s solicitors? Are they afraid of blowback in the legislature that could affect their re-election if they so much as acknowledge the problem?

Or, do they approve of the methods that they are perpetuating?

The one question that bothers me more than anything else here is: If the prosecutors were honest and above-board, if they told the jurors that Gaston would get a deal for testifying, if they told the judge that they intended to ask for leniency for Gaston, and if they acknowledged the truth of their discussions with Gaston’s attorney about leniency, would the jury have still convicted Dean?

Of course they would have. So, why lie?

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

Lacey Thompson only accepts criminal defense cases in the Myrtle Beach, Lexington, and Columbia, SC areas.

If you have been charged with a crime or think that you are under investigation, call the Thompson Defense Firm now at 843-444-6122 or send us an email to set up a free consultation.

prosecutorial misconduct in SC

3 Responses to “Prosecutorial Misconduct in SC – Why it is Still Happening

  • Respondent
    2 weeks ago

    I love the sign; reminds me of my wife. But I have a better one:

    Welcome to South Carolina.
    (The thirty day state)
    Come for the history.
    Stay because we didn’t learn a damn thing from it.

    Once again, it’s not a court of justice; but a court of persecution for profit. Having recently read the written testimony of an inmate imprisoned for like reasons, this inmate spoke of an attorney that took $7500.00 dollars of his money and received little more than a plea bargain that the inmate could have negotiated himself. When the inmate exclaimed this to the judge, the judge said he knew the attorney personnally, further implied that there was nothing wrong with what he did, lol. I’ll give you one guess who it was, lol…

  • Prosecutorial Misconduct it a learned behavior and not taught in law schools. It is an endemic and those that can stop it should. There has been a lot of press about this issue in S.C. but then there is no follow up. I hope that the S.C. ethics committee will take action when presented with ethics complaints against prosecutors. What I see in our justice system is something we in the U.S. call communist yet we let it happen on a daily basis and do nothing.

  • Support S. 1380 a bill
    To amend the Federal Rules of Criminal Procedure to remind prosecutors
    of their obligations under Supreme Court case law. All this does is to make the prosecutor say under oath that he/she has turned over all discovery. Simple.. yet congress feels they need to make sure the prosecutor does his/her job.

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