South Carolina House Panel Hears Judicial Reform Proposals

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South Carolina house lawmakers have been tasked by speaker Murrell Smith with producing a judicial reform bill by February 2024. The ad hoc committee impaneled to tackle this task met for the second time on Tuesday. South Carolina attorney general Alan Wilson – as well as solicitors Kevin Brackett and David Pascoe – re-iterated their reasons for pursing reform, and answered lawmaker’s inquiries about their proposals.

FITSNews has published full interviews with Wilson (click to view), as well as with Brackett (click to view) and Pascoe (click to view) on this issue, and while none of the three agree on the same specific reform proposal – their general contention is that the legislative branch has too much influence on the state’s judiciary.

Wilson’s presentation to the committee focused on his specific request – for the executive branch to have seats on the state commission thats screens judicial candidates (JMSC).

South Carolina is one of two states that gives the legislature complete control of the judicial selection and appointment process. The current S.C. Constitution, drafted in 1895, was intentionally structured to vest as much power in the hands of the legislature as possible.

After reconstruction white Democrats feared that the majority black population would assume political control, so they re-wrote the state’s constitution to mitigate the risk that a black governor would have any real power if elected.

South Carolina’s gubernatorial office remains impotent compared to other executives nationwide, with the legislature enjoying direct control over many functions of government which would be executive functions in a more logically established system.

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Wilson – along with the solicitors and sheriffs who stand alongside him – represents many executive departments made needlessly subservient to the legislature in 1895. Now they argue the legislature ought to include executive branch appointees in the constitutionally mandated JMSC to restore the public’s faith in the judicial system.

Wilson’s ask of the ad-hoc committee is not for constitutional change to broadly alter the balance of power away from the legislature, but for the governor to appoint all – or at least a portion of – the JMSC commissioners. Wilson and his allies also want the panel to be staffed and funded separate from the legislature to increase the independence of the commission – which stands accused of allowing legislative insiders to effectively pick who sits on the bench by pressuring qualified candidates to withdraw their candidacies so that only the commission’s preferred candidate (and two less qualified candidates) make it to the final vote by the General Assembly.

While FITSNews has documented numerous instances of this system resulting in diminished public safety and increased corruption over the past several years, the concerted push for reform by executive branch officials (and a growing number of legislators) is relatively new, and a large number of legislators of both political parties remain unconvinced there even is a problem, let alone that anything should change.

Former fourth circuit solicitor and current state representative Robby Robbins asked Wilson how “having that (Alex Murdaugh) trial on TV every day … where a South Carolina judge was viewed by the entire country … in a trial where justice was delivered… did not alleviate any concerns that the public has about any troubles with our judiciary.”

Wilson told Robbins that the answer to his question was in the question itself.

“You said the entire eyes of the country were watching that unfold, the whole eyes of the world aren’t in every courtroom, every bond revocation hearing, every plea or every trial,” Wilson said.

Alex Murdaugh’s unique depravity and criminality was so singularly absorbing from a narrative standpoint that it cast a blindingly intense spotlight on his family’s long history of inappropriately influencing the criminal justice system. It also exposed how ripe state probate courts are for fraud and abuse.

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While Murdaugh’s murder conviction proved to the world South Carolina is capable of pursuing and obtaining justice, the story has led many Palmetto State citizens to more closely examine those who abuse judicial power in their own communities – and to conclude Murdaugh’s fraud is not as anomalous as it may have initially seemed.

State representative Ivory Thigpen argued “we’re having a case being made against legislators that is not factual, its here-say, it’s anecdotal.”

Thigpen’s question provided insight into how many legislators on the commission – and in the General Assembly – view reform efforts. FITSNews has spoken with multiple legislators on background who feel as though media coverage – and the pejorative use of the term “lawyer-legislator” – is unfair.

In their defense, there are more than fifty attorneys in the S.C. General Assembly – the vast majority of whom have never been accused of any impropriety. Yet Democrat and Republican leadership’s continued support of legislators who’ve credibly been accused of abusing their power – and the continued denial on the part of many legislative leaders that this problem exists – tarnishes the names of the many moral lawyer-legislators who honestly advocate on the behalf of their clients.

A number of legislators challenged Wilson to provide more concrete examples of the improprieties he alleged. He repeatedly deferred, telling the committee the solicitors in attendance planned to share detailed examples.

First judicial circuit solicitor David Pascoe did just that.

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Pascoe’s first volley cited a number of abuses of the legislative protection which prevent lawyer-legislators from being called to court during the legislative session – and often when they are not in session.

Pascoe first recounted a case in which his office was prepared to take a criminal domestic violence defendant to trial. With witnesses lined up and ready to testify, the defendant hired a lawyer-legislator as co-counsel on the eve of trial and was able to force the judge to postpone the proceedings.

“At around the same time (as his office had to delay their criminal domestic violence trial) solicitor Wilson’s office had a very serious felony DUI set for trial for January, it had been set for months… but two or three weeks before that January trial date, the lead defense council announces ‘we aren’t going to trial,'” Pascoe said.

The judge didn’t grant a continuance, rather, the defense attorney told the court he had “assigned a lawyer-legislator from my office, and he is protected through July.”

Pascoe told the committee the case had been pending for three years prior to the lawyer-legislator being assigned.

“The head of the firm, a renowned defense attorney, then announced he was assigning all of his criminal cases to the lawyer-legislator,” allowing his firm to delay all pending trials until after the legislative session.

The defendant chose to take a plea deal after successfully delaying the case, and Pascoe submitted emails to the committee which showed his attorneys offering to secure a favorable sentence in front of S.C. circuit court judge Bentley Price, whom the lawyer-legislator told his client he had helped elect.

Pascoe named other names, calling out state representative Leon Stavinakis for invoking legislative protection to avoid a bond revocation scheduled for that day – while telling the judge he’d like to waive his legislative protection to allow another client of his to enter a guilty plea.

The presiding judge told Stavinakis the move “doesn’t seem to be in the spirit” of the order granting legislators protection, but had no option but to go along with his request.

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S.C. chief justice Donald Beatty appeared to have addressed this issue in January of 2022 when he issued an order demanding that lawyer legislators appear for all general sessions matters more than three years old, as well as bond revocations and family court cases involving children.

However, Beatty instructed court administration to send an email to judges the following day – telling them to ignore the previously issued directive.

Pascoe documented more than just abuse of protection from appearance, citing a recent case in which a defendant previously convicted of voluntary manslaughter and heroin trafficking – who was out on bond for distribution of narcotics at the time of his arrest for trafficking heroin – was’t initially given a bond, but then received one after retaining a JMSC member. The judge’s attitude towards the defendant changed so much that they allowed the defendant to use their personal cell phone to speak with the legislator they retained.

“Tell me a non JMSC member would be able to do this” Pascoe implored the committee.

Pascoe moved from corruption in the courtroom to corruption in the commission responsible for vetting judicial candidates, voicing concerns raised by many members of the bar that judicial candidates are pressured by commission members into withdrawing their candidacies as a form of retribution, or so that a favored candidate might advance unopposed to a vote by the whole General Assembly.

Pascoe recounted the story of S.C. circuit court judge Kristi Harrington, who denied a last minute request for a continuance from then-JMSC member and defense attorney Peter McCoy.

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Harrington immediately telephoned another circuit court judge, telling them she was afraid she had angered McCoy.

The next week representative Stravinakis called Harrington.

“What did you do to make Peter so mad?” he asked. “I was with him and Murrell (Smith) the other night and I’ve never seen him so mad.”

Harrington contacted her JMSC attorney, concerned about her candidacy, but was told not to worry as she was running unopposed, and because no complaints had been filed against her.

“But she knew she did have something to worry about because she offended a JMSC member,” Pascoe said.

Harrington faced withering criticism from the commission. Pascoe pointed to Rutherford, who had slid into the back of the committee room moments earlier, telling the committee he led the assault – literally reading Harrington her Miranda rights during the proceeding. Harrington ultimately withdrew.

Pascoe called her removal “rotten to the core” and said he spoke with former S.C. office of disciplinary counsel chief John Nichols to confirm Harrington’s version of events.

Pascoe alleged that S.C. senate judiciary chairman Luke Rankin instructed Nichols to sit directly behind Harrington as a form of intimidation after JMSC staffers requested he attend the hearing.

Nichols is said to have repeatedly apologized to Harrington multiple times for “letting himself be used for this injustice.”

At the time Charleston attorney Roy T. Willey wrote an opinion editorial in The State newspaper asking readers to “watch to see if a legislator or spouse of a legislator is picked to fill Judge Harrington’s seat.”

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While a spouse wasn’t picked, McCoy’s friend Bentley Price was tapped to take her position. McCoy spoke of his “hard work” to get Price elected at his investiture.

His hard work paid off when he appeared before Price representing accused attempted murderer Savion Scott, who was out on five different bonds totaling $130,000 when he is alleged to have fired a handgun into a crowd of people in Charleston, S.C.

McCoy appeared with Scott at his bond hearing, and Price lowered his bond to $100,000 despite the state’s request to revoke it. Scott went on to allegedly commit murder – at which point he was finally denied bond.

In his testimony, solicitor Kevin Brackett pulled the lens back – addressing some of the larger issues looming over South Carolina’s judicial system.

While the obvious immorality of many of the examples Pascoe cited make for great headlines, and point to a glaring problem that must be addressed, South Carolina’s court systems face massive backlogs and any comprehensive judicial reform effort would be remiss not to attempt to address them.

State representative Micah Caskey asked Wilson if his narrow proposal for seeding the JMSC with executive appointed commissioners would be enough to prevent further calls for judicial reform in coming years. While Wilson should not be faulted for focusing on what he believes is his most crucial request of the General Assembly, Caskey certainly is correct in his assertion that changing the makeup of the JMSC will do little to address the backlog, or problems seen in magistrate and probate courts across South Carolina.

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Brackett suggested creating a system to free up the general sessions courts by creating an intermediate court. In his proposal district court judges would hire magistrates to handle lower level cases.

Moving a percentage of the cases currently on the general sessions docket to a lower court would streamline the processing of a number of the serious cases that have sat dormant in the general sessions under the current system.

Brackett also suggested statutorily mandating the tracking of various evaluative criteria so that the efficiency of the judicial circuits can be quantified. Statistics such as the age of cases, complaints received, percentage of cases disposed of with pleas, and the time it takes judges to set bonds could all be used to hold both solicitors and judges to their constitutional requirement to provide defendants speedy trials, while allowing the public to monitor the efficacy of the judicial system their taxes fund.

While there were efforts made this week to address the backlog of cases which plagues the South Carolina judicial system, the testimony of the three prosecutors who addressed the panel centered on what they feel is undue influence exerted on the judicial department (South Carolina doesn’t even technically have a judicial branch) by the legislature.

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Both Brackett and Pascoe quoted the Federalist Papers in their presentations, citing Alexander Hamilton as saying “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”

James Madison put it this way, if judges are “not independent of the legislature in this particular, their independence in every other would be merely nominal.”

While the bill the house will eventually produce is still in it’s infancy, it is undeniable that the current balance of power is fundamentally antithetical to the principle of separation of powers – and that there is a body of evidence that bad actors take advantage of this imbalance.

The third ad hoc committee meeting will hear testimony from members of the defense bar. Their concerns that defendants face an onerously slow court system are clearly well founded, and this news outlet looks forward to hearing the perspective of attorneys on the other side of the state’s justice system.

Count on FITSNews’ continued coverage of the campaign for judicial reform in South Carolina.

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ABOUT THE AUTHOR …

(Via: Travis Bell)

Dylan Nolan is the director of special projects at FITSNews. He graduated from the Darla Moore school of business in 2021 with an accounting degree. Got a tip or story idea for Dylan? Email him here. You can also engage him socially @DNolan2000.

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