South Carolina Lawyers Weekly
The fight to pry control of the criminal docket from the hands of South Carolina’s solicitors has dragged on for years without a single appellate decision addressing the old law behind the controversy.
But now, the state Supreme Court is considering three cases challenging the constitutionality of the statute that gives solicitors the power to schedule criminal cases for trial – a power which is vested in no other group of prosecutors in the nation.
The cases are State v. K.C. Langford III, Robert James v. State and State v. Gene Tony Cooper Jr. The first two matters have been argued and are awaiting rulings, while arguments in Cooper are slated for Oct. 17. The underlying argument against the state in all three cases is that solicitors abuse their control of dockets to sabotage the defense.
“Whether solicitors are going to get to keep control of the docket may be decided within the next few months,” said Cooper’s attorney, public appellate defender Robert M. Dudek in Columbia. “Nobody knows how it’s going to come out.”
The S.C. Public Defender Association alleges in an amicus brief in Langford, the lead case, that solicitors often force defendants to languish in jail, essentially serving out sentences for the charges they’re facing before they have their day in court.
Langford spent 673 days in jail before his case was finally called for trial; James was in pretrial detention for 1,000 days; and Cooper waited almost four years for a retrial. They assert that the state violated their federal right to a speedy trial and are asking the high court to dismiss the charges against them.
Public defenders also complain that the docketing system allows solicitors to rush cases to trial when the defense is unprepared; overload public defenders with back-to-back cases; repeatedly and unnecessarily call defendants into court after they’ve made bond; and schedule cases to be heard by pro-prosecution judges – in essence, judge shopping.
“I’m hoping that bringing these cases up at this point will at least give us a published opinion finding [due process] to be a right in South Carolina,” said an attorney for Langford and James, Elizabeth A. Franklin-Best, a former public appellate defender now practicing at Blume, Norris & Franklin-Best in Columbia. “If the court doesn’t do something, we’re going to have people waiting in jail for three or four years.”
The 180-day rule
Since 1983, the state Supreme Court has directed solicitors to dispose of all criminal cases within 180 days of a defendant’s arrest, though all 16 judicial circuits have consistently failed to reach that benchmark. As of Aug. 31, only one circuit, the 16th, had managed to resolve more than 50 percent of its pending criminal docket in 180 days or fewer, according to the latest statistics from the S.C. Court Administration.
First Circuit Solicitor David M. Pascoe Jr. of Orangeburg contends that the delays are the result of having more complex cases, mainly because of advancements in DNA technology and other forensics, and a “woefully underfunded,” understaffed and overworked solicitor’s office, rather than evidence of a statewide conspiracy to deprive defendants of their rights.
Pascoe, who serves as president of the Solicitors’ Association of South Carolina and argued on behalf of the state’s prosecutors in an amicus brief in Langford, stressed that while solicitors schedule cases, judges still have the authority to grant or deny speedy trial motions and continuances.
“For the public defenders to say that we have arbitrary and unfettered control of the docket is simply untrue,” he said.
While Franklin-Best said it seemed like every solicitor in the state showed up to hear arguments in Langford and they “weren’t pleased that we were trying to wrestle the docket away from them,” Pascoe said having scheduling power is actually a burden.
“A lot of solicitors say go ahead and take it because it’s difficult. And every circuit judge that I’ve talked to says that they don’t want it,” he said. Pascoe added that he would be “open” to a court-controlled criminal docket, “but from the resources that we have, I would say that we’re not even close to being able to make that happen.”
Movement toward change
Although the law at the heart of the dispute dates back to 1902, the language that gave solicitors exclusive control of the general sessions docket was added in a 1980 amendment. One of that bill’s sponsors was Jean H. Toal, then a legislator and now the chief justice of the state Supreme Court.
Toal declined comment because of the cases pending before her court. But in 2001, when a pair of legislators proposed a bill that would have transferred docket control to the judges, Toal was quoted in an Associated Press report as opposing the effort, which ultimately went nowhere. Still, she acknowledged that delayed justice was a problem.
“There’s no question we have a problem,” she said at the time. “It’s not a one circuit problem. It’s a state problem.”
In response to the backlog, the Supreme Court created a docket management task force last year that is comprised of judges, clerks of court, and lawyers who have been searching for ways to improve case processing in the civil, criminal, and family courts. The task force is expected to release a report soon.
The task force, the trio of cases pending before the Supreme Court and advancements in court technology, including the state’s new electronic attorney registration program, foreshadow a significant change, said former public defender E. Charles Grose Jr., who is now in private practice in Greenwood and argued on behalf of the S.C. Public Defender Association in Langford.
“It might be through case law or court rule or an administrative order,” he said, “but I think we’re going to see the Supreme Court and the trial court taking more control over criminal dockets.”
